Public performance
Overview The public performance right is available to all types of "performable" works — literary, musical, dramatic, and choreographic works, pantomimes, motion pictures, and other audiovisual works — with the exception of sound recordings. While some have urged that many, if not all, online transactions be characterized as "performances," it is important to understand: * the definition of "perform" in the copyright law, * that only "public" performances are covered by the copyright law, and * the limitations set out in the statute that render the performance right inapplicable in a variety of circumstances (mostly of a nonprofit nature).See 17 U.S.C. §110. Statutory provision Section 106(4) of Title 17, U.S. Code, affords the owner of a copyright of a copyrighted work the exclusive right to perform the copyrighted work publicly.See id. §106(4) (“The owner of copyright under this title has the exclusive rights to do and to authorize any of the following: . . . (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly . . . .”) Of course, as the statutory language indicates, in order to constitute a public performance, an event must first satisfy the definition of “performance” under the Act. “To ‘perform’ a work means to recite, render, play, dance, or act it, either directly or by means of any device or process . . . .”''Id.'' The terms “recite,” “render” and “play” are not defined within the Act. In order for a work to be performed, it must be transmitted in a manner designed for contemporaneous perception. The "public" nature of a performance — which brings it within the scope of copyright — is sufficiently broadly defined to apply to multiple individual viewers who may watch a work being performed in a variety of locations at several different times. Courts have repeatedly imposed public performance infringement liability upon entities that, for example, develop novel modes of delivering motion picture performances to customers and advance novel legal arguments as to why their performances are not "public."See, e.g., Columbia Pictures Indus. v. Redd Horne, Inc., 749 F.2d 154 (3d Cir. 1984) (video store operator liable for public performance violation where he rented tapes of motion pictures to customers and provided semi-private screening rooms where the tapes could be viewed); Columbia Pictures Indus. v. Aveco, Inc., 800 F.2d 59 (3d Cir. 1986) (same result where customers also rented rooms for viewing); On Command Video Corp. v. Columbia Pictures Indus., 777 F. Supp. 787 (N.D. Cal. 1991) (infringement found where hotel guests in rooms selected tapes to be played on remotely controlled console in hotel basement with signal then sent to rooms). Application to the Internet In the context of the Internet, the fact that performances and displays may occur in diverse locations and at different times will not exempt them from the public performance and public display rights. Musical works and sound recordings The scope of the public performance right granted by the Copyright Act is broader for musical worksFor those who wish to exercise the public performance rights in a musical work, a license is required. These licenses can be obtained directly from the copyright holder, but for most musical works, a license can be obtained from the major performing rights societies — ASCAP, BMI or SESAC. than for sound recordings. The holder of a copyright in the musical work has a more robust right to control public performance in a wide variety of situations, while the sound recording copyright holder has a far more limited right to control public performance of sound recordings — only when the sound recording is transmitted to the public through digital means. The difference in the scope of the public performance right under the Copyright Act for these two copyright holders, and its impact on royalty obligations for third parties wishing to publicly perform sound recordings, may be illustrated by the following scenarios: * An entity that wants to broadcast a sound recording for the public through non-digital transmissions, such as a terrestrial AM/FM broadcast radio station,A “broadcast” transmission is defined as a transmission made by a terrestrial broadcast station licensed by the Federal Communications Commission. 17 U.S.C. §114(j)(3). must pay royalties to the musical work copyright holder (e.g., the songwriter) for the right to publicly perform the musical work, but the radio station does not have to pay royalties or otherwise get permission from the sound recording copyright holders (the recording artist, musicians, and record label).This will change if the Performance Rights Act is enacted by Congress. * In contrast, if the music is transmitted to the public through digital means, the two music copyright holders’ public performance rights (and the transmitting entity’s royalty obligations) are different. If the public performance of the sound recording involves a digital audio transmission — as used by an Internet radio broadcaster (or “webcaster”), satellite digital radio company, or a traditional AM/FM radio station offering a simultaneous Internet stream of its over-the-air programming — then both the songwriters and recording artists have the legal entitlement to be paid for that activity. Stated differently, the webcasters and satellite radio companies, because they transmit audio using digital technologies, are required to pay royalties to both the musical work copyright holder and the sound recording copyright holder. Performing rights organizations Royalties for the public performance of musical works and sound recordings are collected and distributed by performing rights organizations (PRO), such as the American Society of Composers, Authors, and Publishers (ASCAP), Broadcast Music, Inc. (BMI), and SESAC) and Sound Exchange, respectively. Exemption The Copyright Act includes exemptions for certain public performances of copyrighted music. Subsection 110(4) of Title 17 provides that the following performances do not constitute a public performance for the purposes of the Copyright Act and therefore do not require a public performance license: Infringement claims Direct infringement To be held liable for direct infringement of the public performance right, a defendant must have engaged in conduct that is volitional or causally related to that purported infringement.Cartoon Network LP v. CSC Holdings, Inc., 536 F.3d 121, 130-31 (2d Cir. 2008) (considering infringement under 17 U.S.C. §106(1)). In other words, to impose direct liability, there must be a “nexus sufficiently close and causal to the illegal infringement that one could conclude that the defendant himself trespassed on the exclusive domain of the copyright owner.”''Id.'' at 130 (citation omitted). Secondary liability A defendant may also be secondarily liable for another’s public performance of a copyrighted musical work. While “the Copyright Act does not expressly render anyone liable for infringement committed by another,” it “does not preclude the imposition of liability for copyright infringements on certain parties who have not themselves engaged in the infringing activity.”Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 434-35 (1984). Through contributory infringement, one infringes “by intentionally inducing or encouraging direct infringement.”Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 930 (2005). Vicarious infringement exists where one “profits from direct infringement while declining to exercise a right to stop or limit it.”''Id.'' In order to hold a defendant secondarily liable someone else must have directly infringed the public performance right.See id. at 940 (“The inducement theory of course requires evidence of actual infringement by recipients of the device.”); Faulkner v. National Geographic Enters., Inc., 409 F.3d 26, 40 (2d Cir. 2005) (“There can be no contributory infringement absent actual infringement.”); Matthew Bender & Co. v. West Publishing Co., 158 F.3d 693, 706 (2d Cir. 1998) (rejecting plaintiff’s contributory infringement claim, in part, because the plaintiff “has failed to identify any primary infringer”). References See also * Digital Performance Right in Sound Recordings Act of 1995 * Performance Rights Act * Sound recording performance right Category:Copyright Category:Legislation Category:Legislation-U.S.-Federal Category:Legislation-U.S.-Copyright Category:Music